HC Deb 12 July 1938 vol 338 cc1280-7
Mr. G. Kerr

I beg to move, in line 2, leave out "and nullity."

This amendment is also purely consequential.

Mr. Erskine Hill

I beg to second the Amendment.

Amendment agreed to.

Motion made and Question proposed, "That the Bill be now read the Third time."

Hon. Members


Mr. Deputy-Speaker

Hon. gentlemen can rise to oppose the Third Reading, but they cannot object to the Third Reading.

12.59 a.m.

Miss Horsbrugh

I would remind the House that on this Bill—and I consider it an extremely important Bill which it has been difficult to discuss—we have had no opportunity for a Second Reading debate. Therefore, on each occasion whether in Committee or now, it has not been possible before to discuss the Bill as a whole. The first thing I would like to say is that it does make a very great change in the law of Scotland, and makes a change in more than one way, because the transferring of the onus from the pursuer to the defender is a change which the people of Scotland will view as quite astounding. Although we have had desertion as a ground for divorce for many years, the time has been extended, and the only other important change is the change of cruelty to which, I think it was the hon. Member for Shettleston (Mr. McGovern) referred.

I agree with a great deal that the hon. Member for Shettles ton said on the subject of cruelty and desertion. The reason many of us thought it was more important to press the subject of incurable insanity was that, as hon. Members have pointed out, it brings something quite new into our divorce laws. It has to do with the subject of illness, and something over which neither party has the slightest control. It would have been very much better if, instead of coming here to discuss the divorce laws of Scotland, we had first discussed the marriage laws. I think we have begun from the wrong end. If there had first been legislation before the House dealing with the marriage laws, it would have been very much better, and would have been appreciated by Scotland and by many hon. Members in this House. I want to say once more that it would have been a far better thing if the experiment had been first tried in England, and we had waited to see the result.

It is a very bad thing that this Bill should come on the Statute Book at this time. It is not wanted in Scotland. It yeas brought here from another place as a Private Member's Bill. Furthermore, those Private Members who brought it forward had a great advantage in having their case and the legal point of view put by the Lord Advocate. I think we would all agree that there is nobody in this House who can put a case more clearly and concisely, and win through, than the Lord Advocate. It is a very great thing for the promoters of the Bill that they should have had him to put their case so clearly. I know that the promoters have done their best to meet us. Clause 3 was added to the Bill on the Committee stage because of the difficulty at that time, and because it was felt very important that there should be some defence for the unfortunate insane person. The promoters met us on that and on a proviso put forward in another Amendment. We do appreciate it. I know that they went as far as they could, but there is that great gulf between us and there has been this change in the law.

Many of us would have liked to have had an opportunity of putting our points more clearly. Now it is going out from the House of Commons that in a case of divorce all the pursuer need prove is that the defender has been in an institution for a period of five years and the onus of attempting to prove that that is not incurable insanity is left to the insane person, namely, the person who'is to be divorced, and who has to face all the difficulties and worry coming from mental illness. I believe this is a bad Bill, and one which should not be carried through at this time. It will not help towards the happiness of the people of Scotland, nor will it bring better conditions in the homes. For these reasons, I oppose the Third Reading.

1.4 a.m.

Mr. Mathers

On a point of Order. There was an objection raised to the Third Reading being taken. The item on the Order Paper was for the Consideration of this Bill. The suspension of the Eleven o'Clock Rule was carried in order that the Consideration should be given, but not in order that the Third Reading should be taken. I ask you, Mr. Speaker, if it is in order to proceed with the Third Reading now?

Mr. Speaker

The suspension Motion which allows this Bill to be taken after Eleven o'Clock is on Government business, and on the Divorce and Nullity of Marriage (Scotland) Bill. It does not exclude the Third Reading.

Mr. Mathers

The point of Order I am making is that the reference on the Order Paper is to the Consideration of this Bill. There is no indication in it that the Third Reading would be taken.

Mr. Speaker

That is often the case. The stage on the Paper is taken, and it very often follows that the Third Reading also is taken.

Mr. Mathers

My question is whether the Third Reading can be taken in these circumstances, seeing that hon. Members objected to it being taken?

Mr. Speaker

I have said that that is often done.

Sir Patrick Hannon

On that point of Order. Would it be in Order to appeal to the Lord Advocate and those responsible for the promotion of the Bill to defer the Third Reading? It is imposing on all hon. Members of the House a very great embarrassment at this time of the night to discuss a Bill which is, obviously, very controversial, and the speech of the hon. Lady indicates that it would be better that this Bill should be taken on another occasion.

Mr. Thurtle

Before the right hon. Gentleman responds to that appeal, might I represent to him the desirability of carrying on and finishing the Bill, as we have sat for so long already?

Mr. Speaker

It is not for me to decide. It is entirely a matter for the House to decide.

Sir P. Hannon

May I respectfully put it to you, Mr. Speaker, that the Bill has been under consideration for a long time, controversial points have been raised and acute differences of opinion have arisen between Scottish Members. Is it not asking too much of the House to discuss the Third Reading at this hour?

Mr. Davidson

Further to that point of Order. As one who has taken his share in the criticism of the Bill, I put it to the House that we have had a full opportunity of criticising the Bill and moving Amendments. Having sat so long and having had that opportunity, we ought to see the Bill through. I suggest that any attempt to do otherwise is not for the purpose of further Consideration but for the purpose of hindering the Bill.

Mr. Speaker

What I said was that it was not for me to decide the matter at all, but for the House itself.

1.8 a.m.

Mr. Westwood

From the very introduction of this Bill—and it was not this Session but last Session—I have opposed that provision which would make incurable insanity a ground for divorce. But the House has decided that that is to be a ground for divorce in future, and, like a good democrat, I have to accept the decision of the majority. But I would remind the House that those who objected to the Bill, as previously brought from another place to this House, have been justified in their objections. The Bill now before the House is not the same Bill as came from another place last Session. First of all, mere insanity was to be a ground for divorce, and, secondly, it was to be insanity for a period of three years. Now, as the result of the objections that were raised twelve months ago, it is to be incurable insanity and for a period of five years, so that we have at least been justified in the opposition we raised, because this House has determined on a different period and on certain safeguards for the unfortunate individuals who may be declared to be insane, and whose spouse may desire to get a divorce because of that. Other safeguards in law have been provided in Clause 3 which are all to the good. I would remind the House that in the original Bill, as brought from another place, there was a Clause that dealt with criminality, but which was withdrawn. I am going to claim as a result of the objections taken twelve months ago, the debates in Committee and, further, the improvements that have been made on the Report stage, that those who made their objections then and during the various stages have been justified in the line they pursued in opposition to this Bill. I do not oppose divorce as divorce. There are justifications for persons being free and, as I have already stated, my objection to the Bill was because of that Clause dealing with incurable insanity. Like a good democat, however, I am willing to accept the decision of this House and in these circumstances I, for one, will not go into the Division Lobby to vote against the Third Reading of the Bill.

Mr. Spens rose——

Mr. Davidson

May I draw your attention, Mr. Speaker, to the fact that we have discussed this Bill only since 9 p.m. last night? I would draw the attention of the House to the fact that we discussed the English Marriage Bill for many days and, therefore, may I appeal to those English Members here to go home and let us finish our Scottish business?

Mr. Speaker

That is not a point of Order.

1.12 a.m.

Mr. Spens

It is obvious that the Scottish Bill is considerably in advance of the English Bill passed last year. It is on that ground that I must detain the House for a very few minutes tonight, because I know well what will happen in the next two or three years. An amending Bill will be brought in to bring the law in England into conformity with the law in Scotland. The Lord Advocate has said that Clause 6 is to enable the Bill to work. It is far more than that, as any lawyer knows. The law of presumption under the Bill is that in order to get a divorce for insanity you must have a preliminary five years' detention in a home before you can file a petition for divorce. Then you have to prove incurable insanity, and that detention has nothing whatever to do with your proof of incurable insanity. It is a matter to be taken into account when you bring your petition for divorce. Persons who have been incarcerated for five years and are still in such a mental state will have to have evidence given to the Court in regard to their state.

The Lord Advocate says there have been difficulties in the English Courts; but with great respect I think he is exaggerating. This Bill has the effect of providing that in the case of a person who files a petition for divorce and brings evidence that there has been five years' incarceration, the Court has to presume that the other person is incurably insane unless someone on behalf of him is present and is in a position to prove the contrary. The contrary that has to be proved is that the person is likely to recover. Where can you get that from? Speaking as an English lawyer I know if there is a presumption one way you have to rebut it with sufficient alternative evidence to make that presumption untenable. This is a tremendous step forward that a person should be able to go to the Court and say, "My Wife has been shut up for five years"; to bring forward some medical evidence that she is not likely to recover and thereupon the whole burden of proving the contrary is cast upon the person representing the unfortunate person. I realise that this is a tremendous step forward as we have here divorce on the ground of insanity. I am unable myself to agree that this is just a matter of making an unworkable law in England work better in Scotland.

1.16 a.m.

Lieut.-Commander Agnew

We have heard most momentous words from the Lord Advocate this evening. He has told us that the Matrimonial Causes Act, 1937, which we passed after such a long discussion, was a mistaken one and that, therefore, a new and better system is brought forward in order to be set up in Scotland. When questioned as to why certain Amendments could not be accepted, the only reply, so far as I can see, that he gave was that certain difficulties would arise in Scotland. I wonder very much what those difficulties are. I wonder if the difficulties would be found in the words of the Lord Advocate in the Committee upstairs when he was asked what is exactly meant by the words "unless the contrary is shown."— If in any such case as this the medical evidence amounted to no more than this, that the probabilities of recovery are no greater and no less than in any other case of five years continuing insanity, the presumption would hold. If, on the other hand, the medical evidence could adduce any assignable reason for alleging that recovery within a definite period was more probable than in the general run of cases, the contrary would be proved and the presumption would be set aside. in other words, if the net result of the evidence is to leave the scales equally balanced as against recovery and non-recovery, the presumption would hold. If, on the other hand, the scales can be tipped in one particular case against the general run of cases, the presumption would disappear and the divorce would be refused. The Lord Advocate went on to say there was no novelty in the matter. He said: Certain conclusions follow if a person is found in possession of stolen goods, unless he can explain satisfactorily how they came into his possession."—[OFFICIAL REPORT (Standing Committee on Scottish Bills); cols. 85–6, 24th May, 1938.] That shows that the Lord Advocate and the promoters of the Bill think it a wise and proper course we are about to take that when a man or a woman is petitioned against in a civil case and has to defend it in the most difficult circumstances possible—where they have not their sanity to assist their learned counsel in the courts to rebut the charge—the onus is to rest not on the pursuer to show that their insanity is incurable but on them to show that their malady is a curable malady. How on earth it is going to work in practice that an advocate representing a person who is mad is going to show that at a later stage that person will not be mad any more I cannot imagine. Yet that is the new law that is to be set up in Scotland.

There is another point. So far as I can see, the Court itself has no obligation in the matter. It will allow this duel to go on with the sides rather unfairly matched, and at the end of that time no doubt a judge will give a verdict. In the English Statute there is a different system. There is a safeguard in the Act of 1937.

Division No. 300.] AYES. [1.23a.m.
Alexender, Rt. Hon. A. V. (H'lsbr.) Fletcher, Lt.-Comdr. R. T. H. Oliver, G. H.
Anstruther-Gray, W. J. Foot, D. M. Paling, W.
Atholl, Duchess of Fyfe, D. P. M Parker, J.
Barclay-Harvey, Sir C. M. Gibson, R. (Greenock) Pethick-Lawrence, Rt. Hon. F. W.
Barr, J. Greene, W. P. C. (Worcester) Price, M. P.
Benson, G. Gridley, Sir A. B. Rathbone, J. R. (Bodmin)
Boothby, R. J. G. Griffiths, J. (Llanelly) Reed, A. C. (Exeter)
Bull, B. B. Hall, G. H. (Aberdare) Royds, Admiral Sir P. M. R.
Burghley, Lord Hayday, A. Russell, Sir Alexender
Burke, W. A. Henderson, J. (Ardwick) Scott, Lord William
Chapman, A. (Rutherglen) Henderson, T. (Tradeston) Smith, E. (Stoke)
Cobb, Captain E. C. (Preston) Higgs, W. F. Sorensen, R. W.
Colville, Rt. Hon. John Hills, A. (Pontefract) Stewart, W. J. (H'ght'n-le-Sp'ng)
Conant, Captain R. J. E. Holmes, J. S. Strauss, H. G. (Norwich)
Cooke, J. D. (Hammersmith, S.) Hunter, T. Tasker, Sir R. I.
Cooper, Rt. Hn. T. M. (E'nburgh, W.) Jagger, J. Tate, Mavis C.
Daggar, G. Johnston, Rt. Hon. T. Taylor, C. S. (Eastbourne)
Dalton, H. Kerr, Colonel C. I. (Montrose) Thurtle, E.
Dobbie, W. Lawson, J. J. Tomlinson, G.
Duckworth, W. R. (Moss Side) Leach, W. Watson, W. McL.
Dunn, E. (Rother Valley) McGovern, J. Watt, Major G. S. Harvie
Ede, J. C. McKie, J. H. Westwood, J.
Edwards, Sir C. (Bedwellty) Macnamara, Major J. R. L. Wilson, Lt.-Col. Sir A. T. (Hitchin)
Entwistle, Sir C. F. Margesson, Capt. Rt. Hon. H. D. R.
Everard, W. L. Marshall, F. TELLERS FOR THE AYES.
Fildes, Sir H. Mayhew, Lt.-Col. J. Mr. Erskine Hill and Mr. Graham
Findlay, Sir E. Milner, Major J. Kerr.
Agnew, Lieut.-Comdr. P. G. Jenkins, A. (Pontypool) Spens. W. P.
Bossom, A. C. Kelly, W. T. Taylor, R. J. (Morpeth)
Cartland, J. R. H. MacDonald, Sir Murdoch (Inverness) Ward, Lieut.-Col. Sir A. L. (Hull)
Crowder, J. F. E. Mathers, G. Ward, Irene M. B. (Wailsend)
Davidson, J. J. (Maryhill) Procter, Major H. A. Wragg, H.
Gunston, Capt. Sir D. W. Ritson, J.
Hannon, Sir P. J. H. Salt, E. W. TELLERS FOR THE NOES.
Mr. Tinker and Miss Horsbrugh

Bill accordingly read the Third time, and passed, with Amendments, and with an amended Title (changed to "Divorce (Scotland) Bill [Lords]").